In 1679, a little-known French poet named Jean de la Fontaine wrote a fable in which a monkey convinces an unknowing cat to steal chestnuts on the monkey’s behalf. The cat burns his paw; the monkey gets his chestnuts. The “innocent” monkey, thus, enjoys the benefits of the cat’s criminal efforts.

Within the last several months, two U.S. Supreme Court decisions and a high-profile California Supreme Court ruling have held that employers cannot escape liability for actions undertaken via the “cat’s paw” strategy. Despite arguably objective motives by ultimate decision-makers, the courts refused to exonerate employers as a matter of law where there was evidence of discrimination by others within the sphere of influence, even if not directly on the decision tree. These decisions stand for the proposition that employers cannot insulate themselves from liability by assigning facially neutral decisionmakers to an otherwise-biased situation.  

The first of these three important decisions is Hithon v. Tyson Foods, the Supreme Court rejected the 11th Circuit’s finding that a supervisor’s use of the word “boy” was not inherently racist, leading the appellate court to overturn the original Alabama jury’s verdict in Mr. Hithon’s favor. In Hithon, the Supreme Court directed the lower courts to consider “various factors including context, inflection, tone of voice, local custom and historical usage” when weighing whether even stray remarks were indicia of discriminatory intent. Rejecting the argument on the face of the words or the frequency of their usage was not appropriate. Although the cat acted, the context of his actions had to be considered in weighing whether they were permissible.  

The second high-profile case on this issue received national coverage largely because it involved Google. In Reid v. Google, the California Supreme Court agreed with Hinson, rejecting the stray remarks doctrine and, instead, considering the “totality of the circumstances” (including remarks that otherwise would have been found “stray”) in agreeing that Mr. Reid had introduced enough evidence to survive summary judgment on his age discrimination claim. Mr. Reid’s evidence included the fact that, despite having received a positive first-year performance review from his 55-year-old supervisor, he was subjected to negative comments about his age, removed from his position, replaced by someone under 40, and assigned to a newly-created position that was then eliminated (the cited reason for his separation). The trial court initially granted summary judgment, based largely on the fact that Mr. Reid’s supervisor (himself over 40) was the sole decision-maker. In so finding, the trial court dismissed evidence of the “stray remarks” as immaterial, because they were not made by the decision-maker. The appellate court reversed, directing the trial court at summary judgment to determine whether stray remarks “support an inference that the employer’s action was motivated by discriminatory animus,” not whether they deserve any weight as evidence. (The appellate court also doubted that the totality of the circumstances would demonstrate that the nominal supervisor truly was a “sole decision-maker” regarding Mr. Reid’s fate.)  

As the Reid court held, although some remarks “provide such weak evidence that a verdict resting on them cannot be sustained,” such determinations “must be made on a case-by-case basis in light of the entire record” by the fact finder. Reid does not preclude the argument that, if stray remarks are truly “stray remarks” – with no connection between the monkey and the cat – they do not establish a prima facie case of discrimination. However, according to Reid, any employee comments in the workplace may support a finding of pretext, no matter their position relative to the plaintiff or the nature of the biased employee’s role in the decision-making process (if any). The “cat’s paw” can have a very long reach.

Finally, and most recently, the U.S. Supreme Court issued its ruling March 1, 2011, in Staub v. Proctor Hospital. Mr. Staub, an Army reservist, claimed that his supervisors had openly expressed an anti-military sentiment that had indirectly influenced the decision to end his employment – the “cat’s paw” again. Mr. Staub’s supervisor had recommended that Proctor terminate his employment. When Mr. Staub lodged his complaints about anti-military animus, Proctor appointed a human resources executive to independently investigate his claims, and also determine whether the termination recommendation was justified. The HR investigation found no evidence of bias, and independently recommended termination. Based on this independent recommendation, Proctor argued that there was no way the termination decision could have been influenced by improper workplace behavior (even if it had occurred).

The Supreme Court refused to endorse such a clear-cut “get out of jail free” card where employers appoint independent decision-makers to try to insulate themselves from liability. The opinion would only go so far as to say: “…if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action…then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified.” Accordingly, under Staub, unless the cat can show that it also, independent of the monkey, decided to reach in and steal red-hot chestnuts, the monkey stays in the picture and everyone gets burned.  

It is clear employers must now, more than ever, take care to act upon any suggestion of inappropriate comments or behavior, even if by peers, and document their disciplinary actions. Make sure supervisors are trained in preparing and delivering realistic performance evaluations and critiques throughout the year – no more “grade inflation.” Also, keep the decision-makers informed but insulated – they should be the folks keeping the workplace fair and equitable, not the ones in the fray with the masses. In order to do so, it is incumbent upon employees to report any behavior they feel is not appropriate or is discriminatory in any way. We can help you establish strong policies and procedures to better protect your paws from getting burned.